Thoughts of an activist lawyer

The EDCA: What’s in it for us?

Why should we allow ourselves to be attacked by the enemies of the US when the US has not given us the same assurance it had given Japan that it would come to our assistance against China?

Let’s compare exactly what President Barack Obama promised the Japanese and what he promised us.

“Our commitment to Japan’s security is absolute and article five [of the security treaty] covers all territories under Japan’s administration, including the Senkaku islands.” In this context, Obama promised that the US is duty-bound to come to Japan’s aid in the event of a conflict with China over a group of disputed islands in the East China Sea.

Compare this with what he declared regarding the Philippines: “Our commitment to defend the Philippines is ironclad. x x x We believe that nations and peoples have the right to live in security and peace and to have their sovereignty and territorial integrity respected.” Furthermore, the US President declared, “We believe that international law must be upheld, that freedom of navigation must be preserved and commerce must not be impeded. We believe that disputes must be resolved peacefully and not by intimidation or force.”

While both commitments appear to be firm, note that Obama did not mention the Spratlys or Panatag in his remarks about the Philippines. He however explicitly mentioned Senkaku Island, which is at the heart of the territorial dispute between China and Japan.

Why was this so?

It is because unlike Senkaku, which the US believes is part of the Japanese territory, the Americans have never believed that we have title over the Spratlys and the Scarborough shoal. In fact in 1933 when France first declared it had title to the Spratlys, only Japan, China and the United Kingdom protested the French claim. The Americans, who were then the colonial power in the Philippines, did not protest the French proclamation. Why? Because they thought that what they purchased from Spain through the Treaty of Paris were only the land territories contained in the map annexed to the Treaty, even if the Treaty does specify that what was bought was the “archipelago of the Philippines, the common meaning of which means islands and waters forming a unitary whole.

So if the Americans would not come to our assistance against China on the West Philippines Sea, why did we allow them further access to our military bases?

Under International Humanitarian Law, the governing law in times of armed conflict, all enemies of the US can target our territory since we allowed US servicemen and facilities to be in our territory. This means that in case of a shooting war, say over Crimea, or because of the on-going US war against terrorism, Russia and terrorist groups can now lawfully target our territory because US troops are present in our territory. With this very high cost arising from the EDCA, what’s in it for us?

Certainly it can’t be any monetary benefit since EDCA does not even require the Americans to pay us rent. Economic reality has made the maintenance of permanent US bases unaffordable for the Americans. Perhaps this is also why they would not pay rent even for their short-term presence in our territory.

Other than the misplaced gratification on the part this administration to be known as America’s lackey, I can’t think of any further benefit that we can derive from the EDCA.

Worse, the EDCA is unconstitutional. While the Aquino administration claimed that it is in furtherance of the Mutual Defense Treaty and the Visiting Forces Agreement, neither treaty is in fact applicable. The MDT is applicable only in case of an armed attack against our “metropolitan territory” or attacks against our “islands in the Pacific”. Since there is currently no armed attack, and since an attack on the Spratlys cannot trigger the application of the MDT, the EDCA cannot possibly be based on the MDT. Neither can it be anchored on the VFA because the presence of US troops pursuant to EDCA goes beyond “visiting”. It is in fact an implementation of a US Defense policy to do away with permanent bases. This being the case, EDCA had to be signed as a separate agreement from the MDT and the VFA. This is why our policy makers, through a 2/3 vote of all our senators, need to give their concurrence to the agreement . This is to ensure that it is pursuant to our national interest.

Perhaps, this administration does not want the senators involved because it knows that the EDCA does not promote our national interest and/or that the administration simply does not have the political support in the Senate, at least not the kind of support that it had when former Chief Justice Renato Corona was removed.

Let’s wise up. Only the Filipinos can stand up for the Philippine interest. Enough of this colonial mentality.

3 comments on “The EDCA: What’s in it for us?”

Interesting and, as always legally informative food for thought, but the truth of the matter is that while the USA remains-for now at least- the No.1 military power in the world, ‘the times they have a-changed’ and no one power can simply impose its will as it once did (just look at how the U.S. has been reduced to pussy-footing timidly around while emitting largely unconvincing threats in relation to Syria, Iran,Ukraine, etc.) so the very best that ‘small-fry’ (sori na lang, but lets be realistic) like the Philippines can do is to ‘make nice’ to the one major power most likely to be kind to it, accept the fact that it is unable to effectively defend its own interests, and hope for the best, which is what, in essence, the Philippines has done by agreeing to the Enhanced Defense Cooperation Agreement (EDCA) which essentially makes it a U.S. dependency without however having obtained in return any iron-clad guarantees.The conflict opposing Japan to China does not really offer a valid comparison to the Philippines vs China since in the latter case there are a bunch of claimants to the disputed territories, and the fact that Japan is a powerful and indispensable staunch ally of the U.S.in Asia both vis-a-vis their Chinese and Russian rivals, and is consequently in a position to make demands on the U.S.that the Philippines cannot.